Delaware Prohibits Inquiry into Past Compensation History

At the Connolly Gallagher blog, our friend and former colleague Tim Holly analyzes HB 1, which has been signed into law and which goes into effect later this year:

The provision getting primary attention makes it unlawful for an employer (“or an employer’s agent”) to screen applicants (both male and female) based on their historic monetary wages or benefits or other forms of compensation. The stated reasoning for this (and the entire law in fact) is to correct actual or perceived pay disparity – where the premise is that women make less than similarly-situated men (presumably because they are women) thus warranting law that prohibits the problem-perpetuating practice of screening applicants based on compensation histories.

The new law also prohibits seeking the history of an applicant’s monetary wages or benefits or other forms of compensation “from the applicant or a current or former employer.” Notably, the prohibited inquiry thus appears to include information about the number of vacation days, the arrangement of employer-paid health insurance premiums, and perhaps history of commission amount (e.g., if in sales).

Notably, this new law is a strict liability law. It does NOT matter your motive in screening or seeking information. Many critics of the bill (now law) argued that there are a multitude of good reasons for at least inquiring (and perhaps even screening) regarding compensation issues, which have nothing to do with sex discrimination or unequal pay. Alas, it does not matter now. Doing so is illegal in Delaware.

Tim has been blogging about this law (including extensive changes that were made to it) for some time. Of particular note is the liability now imposed on an "employer's agent":

such agent [may be] liable for up to $5,000 each first violation and up to $10,000 for each subsequent violation. Therefore, those involved in hiring might want to take particular note of this new law – and employers generally should, of course, beware.

Tim's entire analysis, including thoughts on the legislative background and implications of this law, can be found here: Delaware: The First State to Prohibit Questions About Compensation History.